United States v. Ramiro Perez Lopez

974 F.2d 50, 1992 U.S. App. LEXIS 19390, 1992 WL 201122

• Court: Court of Appeals for the Seventh Circuit
• Decided: August 21, 1992
• Docket: 91-3200
• Status: Published

Opinions

EASTERBROOK, Circuit Judge.

Ramiro Perez Lopez, a citizen of Mexico, has entered the United States illegally many times and been deported almost as often. He has been arrested not only for the purpose of deportation but also on criminal charges of assisting other aliens to enter the United States illegally, in addition to other offenses (most recently grand theft). Although Perez has a lengthy record, many of the sentences were short or suspended on condition that he leave the United States. This time the prosecutor persevered, and Perez pleaded guilty to reentering the United States without authorization after having been deported. 8 U.S.C. § 1326(b)(1).

The sentencing guidelines prescribe a range of 37-46 months’ imprisonment for this offense, given Perez’s criminal history category of VI and a two-level enhancement for obstruction of justice. Nabbed driving a van packed with illegal aliens while on probation from another conviction, Perez fled after his arrest. When caught, he gave two different false identities, one of which he maintained during pretrial proceedings. Cf. United States v. Cervantes, 951 F.2d 859 (7th Cir.1992). Not until studying his fingerprints did agents learn who they had.

Perez does not contest the calculation of the range. The prosecutor recommended a sentence of 41 months in consideration of defendant’s guilty plea. Perez argued for a sentence of 37 months, suspended on condition of deportation (again!). This solution, his lawyer submitted, would save the government the cost of incarceration.

The suggestion that Perez should be released as an economizing device got the district judge’s dander up. He interrupted defense counsel’s presentation to deliver a harangue about aliens who reenter the United States. The judge opined that Perez should be locked away because that is cheaper than paying for federal agents to track down aliens: “[IJsn’t it going to be cheaper to feed him and clothe him than it is to have all of our agents constantly running all over the country looking for Mr. Perez Lopez? ... It’s kind of like a paper hanger. They plaster that paper all over the place. And the recidivism rate is worse than drugs. It gets in their bones and you can’t get it out.... [A]ll of this points up a real problem that we have, you know, what do we do with this turkey?” After allowing defense counsel to conclude his argument — including a rerun of the contention that a suspended sentence would be cheaper for the federal government — the district judge once more asserted that custody would be the less expensive course: “Well, it’s going to cost us about $1,450.00, $1,500.00 a month to take care of you. And quite frankly I think that’s cheaper to the American Taxpayer to at least know where you are.”

Eventually the judge sentenced Perez to 46 months’ imprisonment, the top of the range. “All I can say is that apparently Mr. Perez, you know, likes our prison system. He figures three squares [square meals?] and a roof, and yellow jump suits. Be tough going down south of the border. That’s all I can come to the conclusion, because he keeps coming back.” Emphasizing that after the end of the prison term, and the inevitable deportation, Perez must not reenter the United States, the judge added: “[A]s soon as you get released and as soon as they [the INS] pick you up, and you get down to Del Rio or the border, wherever you’re going to go across, don’t turn around and look back. Just keep on going. Because if you come back up here to this district and you’re in my courtroom, I’m going to pipe you away for so long they’re going to have to package air and bring it to you.... You’ve already done this too many times and we’re not going to screw around with it anymore. No threat. Just a promise. I don’t want to see you around here again. And you stay the Hell off 1-55. Period. At least you stay off it from Dwight down to Staunton. That’s this district. I don’t want to see you again. That’s the sentence of this court.”

The judge’s tirade was inappropriate in both style and content. Sentencing is an occasion for decorous and solemn reflection. A judge imposing sentence represents the sovereignty of the United States. Although he may impress the defendant with the gravity of the criminal law and the seriousness of the offense, he should make every effort to suppress his idiosyncrasies. It is the Rule of Law, the court as custodian of governmental power, and not the judge-as-citizen, that speaks from the bench. A judge is transient but the court must speak for an enduring polity. No judge can eliminate the “I” in sentencing, but each must try. Although the judge has a duty station, he acts for the Nation; a crime is not the worse for being committed between Dwight and Staunton, Illinois, nor is an offender to be encouraged to move to some other district.

Judge Mills expressed disappointment that deported aliens reenter the United States notwithstanding adjurations to keep out. This court expresses parallel disappointment that a member of the bench is unable to contain himself at sentencing, notwithstanding adjurations to do so. E.g., United States v. Szabo, 854 F.2d 251, 254 (7th Cir.1988); United States v. Schneider, 910 F.2d 1569 (7th Cir.1990). Judicial officers unable or unwilling to respect norms articulated by this court ought not lord it over persons in the dock who have a different kind of recidivism problem.

Perez asks us to reduce his sentence in light of the judge’s intemperate remarks. Rules of law bind judges no less than defendants, and the first requirement of any court is jurisdiction. Congress has not authorized appellate courts to alter sentences, imposed within a range properly determined under the Sentencing Guidelines, just because of inappropriate comments in court. Unless the court exceeds the guideline range, appellate jurisdiction depends on a conclusion that the sentence was “imposed in violation of law” or “as a result of an incorrect application of the sentencing guidelines”. 18 U.S.C. § 3742(a)(1), (2). See United States v. Franz, 886 F.2d 973 (7th Cir.1989).

Perez does not contend that his sentence was “imposed in violation of law”. Does taking account of the costs of imprisonment versus apprehension render the sentence “an incorrect application” of the guidelines? Perez himself must believe not, for it was he who first raised the subject. We may assume that costs of incarceration and the other topics broached at Perez’s sentencing are inappropriate reasons to give a sentence above or below a guideline range. Courts have great flexibility in picking a sentence within the range. See Guideline 1B1.4:

In determining the sentence to impose within the guideline range ... the court may consider, without limitation, any information concerning the background, character, or conduct of the defendant, unless otherwise prohibited by law. See 18 U.S.C. § 3661.

See also § 5C1.1(a): “A sentence conforms with the guidelines for imprisonment if it is within the minimum and maximum terms of the guideline range.” We drew the natural conclusion in United States v. Klotz, 943 F.2d 707 (7th Cir.1991), in holding that a fact that could not be used to exceed the range (the defendant’s failure to cooperate with authorities) could nonetheless be used in selecting a sentence within the range. See also United States v. Lara-Velasquez, 919 F.2d 946, 955 (5th Cir.1990).

What happened at this sentencing should not be repeated. But Perez, who received a sentence within the guideline range, is not the victim of an “incorrect application” of the guidelines. Injuries inflicted on the judicial system and the public’s respect for the law by indecorous remarks do not diminish the legal entitlements of the defendant and so do not fall within § 3742(a). The appeal is dismissed for want of jurisdiction.